Hans Raj Batra vs Kalka Prasad Aggarwal and Others

Valmiki J Mehta, J.—The challenge by means of this first appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 7.9.1999 whereby the suit of the Respondents/Plaintiffs for possession and mesne profits has been decreed against the Appellant/Defendant No. 1.

The Appellant became a tenant with respect to a piece of land measuring 1200 sq. yds situated in Khasra No. 1283/67/2 of Mauja Kilokri, Mathura Road, New Delhi. The original Khasra number was Khasra No. 67. By a rent note dated 19.12.1956, the Appellant was let out this piece of land by the predecessor-in-interest of the Respondents. It is not disputed by learned Counsel for the Appellant that the Appellant came into possession of the land through this rent note dated 19.12.1956 (Ex.PW1/16). The learned trial court has held that though a part of land was acquired by the government, however, to the extent the land continues to be in possession of the Appellant/Defendant no1./tenant, because the government does not become the owner of the same since possession was not taken although the land was sought to be acquired. A government becomes the owner of land u/s 16 of the Land Acquisition Act, 1894 only when possession is taken. The learned Counsel for the Appellant also does not dispute that if the ownership of the land is not taken over by the government, the Respondents/Plaintiffs No. 1 to 4 would be the owners of the subject land.

Before this Court, the learned Counsel for the Appellant raised three main contentions. The first contention was that the site plan filed by the Respondents is not correct as per site as of now because part of the land shown in the plan stands acquired by the government and therefore the suit should fail. The second defence is that the suit was not maintainable u/s 50 of the Rent Control Act. The third argument raised was that the rate of damages awarded at Rs. 12,000/- per month is exorbitant.

So far as the first aspect is concerned, the same is merely an argument of technicality rather than anything else because it cannot be disputed that the Appellant is in possession of the land of which, the Respondents No. 1 to 4 are the owners. If that be so, the decree of possession will be to the extent of the land in possession of the Appellant. Merely because the site plan would stand changed post acquisition of a part of the land by the government, the same cannot change the position so far as the land which the Appellant is in possession of, because that land is within the boundary walls and it is this portion within the boundary walls which the Appellant is in possession and which belongs to the Respondents No. 1 to 4, against which the decree for possession would be operative. This argument of the Appellant is therefore rejected. As a matter of abundant precaution, the Respondents No. 1 to 4 are held entitled to move an application before the executing court, if so necessary that there can be a site plan prepared of the land in possession of the Appellant and which is stated to be within boundary walls.

The second argument that the suit is barred by limitation u/s 50 of the Rent Control Act, 1958. Firstly, this was not a ground which was raised either in the trial court or has been raised in the grounds of appeal in this Court. In any case, since what was let out to the Appellant was land, there is no question of protection under the Control Rent Act because the protection of the Delhi Rent Control Act, 1958 is only with respect to premises i.e. constructed structures and not with respect to land. Merely because, a tenant constructs on the land leased out to him would not make the tenancy fall within the protection of the Delhi Rent Control Act, 1958. The tenant is at liberty to remove the structures in case he wants to and as constructed by him on the suit land. Also, there is nothing appearing on the record of the trial court as to that these constructions were made with the consent of the landlord, and on the contrary, counsel for the Respondents states that at no point of time any consent was given to the Appellant and the Appellant has not proved any such consent before the trial court. This argument is also rejected.

The last argument with regard to the rate of damages. If the rate of rent was Rs. 100/- p.m in the year 1956, surely giving a rate of Rs. 12,000/- p.m as in 1991 cannot said to be exorbitant. The civil courts have taken regular judicial notice of increase in rents, more so in urban areas. One such judgment is the Division Bench of this Court S. Kumar Vs.G.R. Katpalia 1999 RLJ 114 : (1999) 77 DLT 266, where judicial notice of increase of rents has been taken note of for awarding mesne profits.

No other point was argued or canvassed before this Court on behalf of the Appellant. The appeal is therefore dismissed leaving the parties to bear their own costs. All interim orders passed in the appeal are vacated. Trial court record be sent back.